# FILED
February 18, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT NASHVILLE SEPTEMBER 1997 SESSION

STATE OF TENNESSEE, * C.C.A. No. 01C01-9611-CR-00477 * Appellee, * DAVIDSON COUNTY * VS. * Hon. Thomas H. Shriver, Judge * SCOTTY S. DAVENPORT * (Aggravate d robbery) * Appellant. *
For Appellant: For Appellee: Jeffrey A. DeVasher Charles W. Burson Assistant Public Defender Attorney General and Repor ter (on appeal) Lisa A. Naylor James P. McNamara Assistant Attorney Gener al Assistant Public Defender 450 James Robertson Parkwa y (on appeal) Nashville, TN 37243-0493 David M. Siegel Nick Bailey Assistant Public Defender Assistant District A ttorney General (at trial) Isabel Maumus 1202 Stahlman Building Assistant District A ttorney General Union Street Washington Square, Suite 500 Nashville, TN 37201 222 2nd Ave., North Nashville, TN 37201-1649

OPINION FILED:__________________

AFFIRMED
GARY R. WADE, JUDGE2 OPINION The defendant, Scotty S. Davenpor t, appeals from his convict ion of aggravated robbery . The trial court imposed a R ange I sentence of eight yea rs. In this appe al of righ t, the de fendan t present s the fol lowing issu es for ou r review:

(1) whether the evidence was sufficient to support his conviction; (2) whether the trial

court erred by denyi ng the defendant's request for a special jury instruction on

the defenses of necessity and duress.
We find no error and affirm the judgment of the trial c ourt.
At about 1:00 A.M. on July 10 , 1995, Mitchell Abbott, a c ash register clerk at a Mapco store i n Madison, was prepari ng to close for the day. A s he attempted to lock the doors, someone pushe d through the doors and knocked him backwards. His assailant's face was partially covered with a cloth, but Abbott could see his eyes and the top of his head. When asked what he wanted, the assail ant pointed towards the cash r egister and then back at Abbot t with his covere

d, outstretched hand, which looked "like he had something in [it]." Abb ott, who initially was unsure whether hi s assailant was armed, h anded over a bag containing fifty to seventy-five doll ars in cash and twenty or thirty dollars

in food stamps, "so nobody would get hurt." Abbott testified that he thought the assa ilant had a gun but conceded that he never actuall y saw a weapon.
Officer Tony Turner, a patrolman with the Nashville Metro Police Department, responded to a radio report of a robbery at the M apco in Madison and interviewed Abbott. He recalled that Abbott descr ibed his assailant as hav ing an orange cloth around his hand and an object that could have been a handgun. Officer Turner was giv

en a detailed description of the s uspect.3 On the next day, Metro Police Officer Marshall Stanton, who was a childhood friend of the defendant, receiv ed a telephone message on his answ ering machine from the defendant, who said he w as "in a bad way and ... thinking about getting ... the police to come to his house." The defendant left w ord that he intended to arm himself and step outsi de so officers would shoot him. The defendant directed Officer Stanton "not to c ome down" to his residence. After hearing the message, Officer S tanton had begun his work shift when he received a report to drive to the de fendant's address. The defendant's ex- wife had called the police to report that the defendant w as suicidal. When Officer Stanton arriv ed at the scene, another officer was tal king with the defendant by telephone. The defendant then saw Officer Stanton and agreed to be handcuf fed and driven to Vanderbilt Hospital for emergency treatment.

En route, the defendant volunteered i nformation to Officer Stanton that he had committed the robbery at the Mapco the previous ni ght. The defendant explained that he had used cr ack cocaine heavily

for two months and had entered the store with a handkerc hief or rag over his hand before demanding money. The defendant explained that he used the r obbery proceeds for a crack purchase at the Rio Vista Apartments but that the dealer substituted a piece of wax. Officer Stanton reported the incident to Detec tive Jeff Nidiffer of the armed robbery division, who traveled to the hospital to question the defendant. T he defendant repeated his confession. After a Vanderbilt phy sician determined that the defendant di d not need to be hospitalized but did require drug treatment,the defendant was taken into custody.

Later, Detective Nidi ffer videotaped another incrimi nating statement by the defendant. The tape, which w as played for the jury at trial, contained a4 statement by the defendant that he had been hi gh on cocaine and without sleep for six days leading up to the robbery. He adm itted waiting in his veh icle, placing a cloth around his face and another cloth around his ha nd and pointed finger. He then entered the store and announced, "T his is a robbery." The defendant told officers that the clerk unlock ed the door and gave him the c ash and food stamps from the register.

Ms. Shirley Janes, the Assistant Manager of the M apco store and Abbott's co-worker, testified on behalf of the defense. While not present whe n the store was robbed, she knew the defendant as a frequent customer. M s. Janes recalled that a few days after the robbery, Abbott re ported to her that he was out side the store, which wa

s against store policy, when first approached by the defendant. Ms. Janes recalled that Abb ott had not mentioned that the defendant wa s armed and had referred to him as "my friend." She testif ied that she had never felt threatened when the defendant had been in the store on other occasions.

The forty-three-year-old defendant testified th at he had worked as a drywall finisher for twenty-eight y ears and could neither read nor write. He admitted that he had abused alcohol since the age of fif teen; although he had successfully quit drinking for a tw

elve year period, he had struggled with alcohol and a drug addiction for the past three y ears since his mother's de ath. The defendant recalled that when her doctors infor med him that she had only six weeks to live, he begun to use cocaine because "I wanted to die with her." The defendant tes tified that he had relied on his mother for the paper work required for hi s work and, after her death, he could no longer work

because of his cocaine habit and hi s illiteracy. H e added that a muscle condition, for which he receives approximately four hundred dollars a month in benefits, was also a d isability. The defendant testi fied that he drove drug5 dealers from one place to another i n order to support his habit . According to the defendant, who is divorce d, his daughter, who l ived with her chi ldren at Rio Vista Apartments, became involv ed with the dealers and ow ed them money. When she did not pay, the dealers thr eatened her children. He cl aimed that he turned to robbery so that the dealer s would not take the "kids out one at a time."

The defendant claimed that he ha d been robbed at gunpoint by these dealers two months before the r obbery. He had partici pated in a shoot-out with these dealers in late June. On both occasions he made repo rts to the police. He contended that a few days before th e robbery, these dealers insisted on money from the defendant's daughter else they would take her childr

en. The defendant testified that he had no other choice but to c ommit the Mapco robbery. H e recalled that the clerk laughed at the time, placed the cash into a paper bag, and the n asked him if he wanted the change too. The defendant claimed the clerk knew there was no gun.

The defendant testified that when he retur ned to Rio Vista Apartments with the money, none of the deale rs would take the money.He contended that he eventually went to

the kingpin, who took the money, gave the defendant a pi ece of wax fashioned to look li ke rock cocaine, and promis ed to "take care of them for you." The defendant recalled at tr ial that he slept sever

al hours before instructing his ex-wife to remove the children from the house because he intende d to commit suicide. He remembered placi ng the call to Officer Stanton and later surrendering t

o him. The defend ant expla ined tha t he did no t tell Off icer Stan ton or Det ective Nidiffer about the threats again st his grandchildren because he did not want them to think his daughter wa

s on drugs. He claimed that the robbery proceeds w ere used6 to protect his grandchil dren. The defendant then expressed r emorse for his actions and asserted that he had successful ly completed a drug reh abilitation program.

Ronnie McEwing tes

tified that the defendant contacted him in June of 1995 and asked him for eight hundred dollars. He recalled the defendant saying that his daughter and gran dchildren were in tr ouble down at the Rio Vis ta Apartments; he was not, however, told that their lives were in danger.

Baptist minister Larry

Graves, a brother-i n-law to the defendant, testified that in June and July of 1995, the def endant asked him for money. He recalled the defendant's claim th at he needed money to pay a drug debt and that he and his family were bei ng threatened. Graves s aid he refused to give the de fendant money because he was not sur e he was being truthful and did not want the defendant to buy drugs. In Jul y of 1995, Graves learned that the defendant had been involved in a shoot ing. He learned that he defendant had fled Knoxville to escape threats against his life. On cross-examination, Graves admitted that he was unaware of any claims of thr eats against the defendant's gr andchildren until after the robbery and his arr est.

I The defendant first challenges the suffici ency of the evidence. On appeal, of course, the state is entitled to the strongest l egitimate view of the evidence and all reasonabl e inferences which might be drawn therefrom. State v. Cabbage , 571 S.W.2d 832, 835 (Tenn. 1978). The credibility of the witnesses, the weight to be given their testimony, and the reconciliation of conflicts in the proof are matters entrusted to the jury as triers of fact. Byrge v. State , 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978). When the sufficiency of the evidence is challeng ed, the7 relevant question is whether, after reviewing the evidence in the light most favorable to the state, any rational trier of fact could have found the es sential elements of the crime beyond a reasonable doubt

. State v. Willia ms , 657 S.W.2d 405, 410 (Tenn. 1983); Tenn. R. App. P. 13(e).

Aggravated robbery , a Class B felony, is "r obbery ... [a]ccomplished with a deadly weap

on or by display of any

article used or fashioned to l ead the victim to reasonably

believe it to be a deadly weapon...." Tenn. Code Ann. § 39- 13- 402(a). Robbery is "the intentional or knowi ng theft of property from the perso n of another by violence or

putting the person in fear." Tenn. Code Ann. § 39-13-401(a). A theft is committed when a pers on, "with intent to depriv e the owner of property,

... knowingly obtains or exercises control over the property without the owner's effect ive consen t." Tenn . Code Ann . § 39-14- 103. A pe rson acts intentio nally, "when it is the person's conscious objective or desire to engage in the conduct or cause the result." Tenn. Code Ann. § 39-11-302(a). A person act s knowingly as to conduct or circumstances "w hen the person is aware of the nature of the conduct or that the circumstances exi st. A person acts knowi ngly with respect to a result ... when the person is aw

are that the conduct is reason ably certain to cause the result." Tenn. Code Ann. § 39-11-302(b).

The defendant specifically contends tha t the evidence did not establish that he used a deadly weapon or any article intended to make the victim reasonably believe he was carr

ying a deadly w

eapon. The jury, howev er, accredited the testimony of Abbott and rejected the claim of the defendant. There was pr oof that the defendant sat in his car and pl anned his robbery. He w aited for other cars to leave the area. Then, he cov ered his face with a cloth to disguise himself and fashioned a rag upon his hand in an effort to lead Abbott to believe he held a8 weapon. The defendant also pushed his way into the store by force and announced "a robbery." Abbott stated hi s belief that the defendant was armed.

In our view, the defendant's actions were clearly knowing and could reasonably be found to have been intentional. We cannot say that the proof w as insufficient to establish every element of aggravated robbery. Under these circumstances, a rational trier of fact could have easi ly concluded that the cri me was committed by the defendant beyond a r easonable doubt. Jackson v. Virginia , 443 U.S. 307 (1979).

II

Next, the defendant challenges the accuracy of the jury instructions. He specifically arg ues that the trial court er red by rejecting i nstructions on the defenses of necessity and duress. The state, however, di sagrees on the basis that neither defense is applicable t o the facts of this case.
Initially, we poi nt out that the trial judge has the duty to giv

e a complete charge of the law applic able to the facts of the case. State v. Harbison , 704 S.W.2d 314, 319 (Tenn. 1986). The instructi ons should include a charg e on the defense of necessity or duress if the facts would fairly support either. As necessity and duress are not cl assifie d by our cod e as aff irmative d efense s, the de fendan t need no t prove them by a preponderance of the ev idence. State v. Culp , 900 S.W.2d 707, 710 (Tenn. Crim. App. 1994). Where the proof, howev er, "fairly raises" the

defense, the trial cou rt "must submit th e defen se to the jury and th e prosecu tion mus t 'prove beyond a reasonable doubt that the defense does not apply.'" Id. (quoting State v. Hood , 868 S.W.2d 744 (Tenn. Crim. App. 1993)). The test for whether a special instruction must be giv

en is whether "there is

any evidence whic

h reasonable minds9 could accept as to any suc h [defense] ...." Johnson v. State , 531 S.W.2d 558, 559 (Tenn. 1975).

We first address the requirement of an instr uction on the defense of necessity. Necessit

y is a d efense wherein c onduct, otherwise unl awful, is just ified if: "(1) The person reasonably believes the conduct is immediately necessary to avoid imminent harm; and (2) The desirability and urgency of avoiding the harm clearly outweigh, according

to ordinary standards of reasonableness, the harm sought to be prevented by the law

proscribing the conduct ." Tenn. Code Ann. § 39-11-609. The Sentencing Commission Comments to this section state that the defense of necessity is applicable in exceedingly rare situations wher

e criminal activity

is "an objectively reasonable response to an extreme s ituation." The Sentencing Commission provides an example as follows: "[T]he necessity defense would bar a trespass conviction for a hiker, stranded in a snow storm, who spends the nig ht in a vacant cabin rather than r isking death sleeping in the open."
Necessity

has traditi onally been

used appropr

iately w hen the extr

eme situation is brought on by something other than a human act. Neil P. Cohen, et al., Prevalence and Use of Cri minal Defenses: A Preliminary Study , 60 Tenn . L. Rev. 957, 966 (1993). Examples of neces sity include a ship v

iolating an embargo law to avoid a storm, a pharmacis t providing medicati on without a prescript ion to alleviate someone's suffering during an emer gency, or where t

wo sailors are shi pwrecked and one pushes the other off the float to sav e his own life. 11 Dav

id L. Raybin, Tennessee Practice § 28.118 (1985 & Supp. 1997) (citations and footnotes omitted). Moreover, necessity requires an immediately necessary action, justifiable because of an imminent threat, wher e the action is the only mean s to avoid the harm. Id. ; see also State v. Green , 915 S.W.2d 827, 832 (Tenn. Crim. App. 1995)10 (trial judge would be prudent to instruct jury on necessity and duress where father's testimony raised a sufficient question of fact as to either defense; father had agreed to participate in a burglary only because his son was directly threatened with harm if the father refused).

Failure to charge the j ury as to the defense of necessity can be reversible error where the facts fairly s atisfy the elements. State v. Bobby Ray Jenkins , C.C.A. No. 03C01-9202-C R-00050 (Tenn. Crim. App., at K noxville, Sept. 18, 1992). In Jenkins , a police officer found the defe ndant in a vehicle stopped in the middle of the road; the defendant was in the driver's seat

and the motor was running. The defendant, who w as intoxicated, had no dri ver's license, and had been previously convicted as a motor vehicle habitual offender, was arrested and again convicted under the Motor Vehicle Habitual Offenders Act. Id. , slip op. at 2. He had presented proof at trial that the car's transmission had mal functioned and his friend, who had actually been dr iving, had left the scene to get help. The defendant had to keep his foot on the brake pedal to pr event the car from rolling down hill and needed the engine running to operate the power brake systems. On appeal, a panel of this court found the defense witnesses w ere consistent and the defendant's tes timony corroborated them. Id. , slip op. at 7. The court ruled that the defendan t had fairly raised a necessity defense an d it was reversi ble error for the trial j udge not to charge it to the jury

. Id. , slip op. at 8.

Initially, we poi nt out that the defendant's trial testimony and his pretrial statements were contradictory. The defense witnesses were marginally corroborative. Dur

ing his taped confession and i n his statement to Officer Stanton in the patrol car, the defendant cl aimed he had robbed the store to g et drugs for himself, having used cocai ne heavily for two months and having gone w ithout sleep11 for six con secutive d ays. He mad e no ment ion to Of ficer Sta nton or De tective Nidiffer that his family had been threatened. Moreover, the defendant has failed to demonstrate that the threat was imminent, requiring i mmediate action on his part. While defense witnesses recalled the defendant's claim that he or his family had been threatened only days or weeks before the crime, Graves testified that he did not learn of the actual threats against the defendant's grandchil dren until after the robbery. Finally , the defendant has not provided pr oof tending to show that aggravated robbery

was the only alter

native available. Ther

e was testimony that he received disability

benefits every month and ow ns a car; thus, there we re lawful avenues for obtaining some fifty dollars owed by his daughter. He did not explain that he could not remove the chi ldren from that environment to hi s own residence. So, even if the defendant's proof was true, he has not established the essential element s of nece ssity.

Next, we turn to the defendant's request for an instr uction on duress. This defense is defined as follows:

(a) Duress is a defense to prosecution where the person or a third person is threatened with harm which is present, imminent, impending and of such a nature to induce a well-grou nded apprehension of death or serious bodily injury if the act is not done. The threatened harm must be continuous throughout the time the act is being committed, and must be one from which the person cannot withdraw in safety. Further, the desir ability and urgency of avoiding

the harm must clearly out weigh, according to ordinary

standards of reasonableness, the harm sought to be prevented b y the law proscri bing the conduct. Tenn. Code Ann. § 39-11-504. The Sente ncing Commission Comments to this section advise that the dur ess defense requires that the offense must be committed because another person threatens death or serious bodily injury if the offense is not committed. There must be no reasonable means to escape the compulsion to12 commit the offense. See State v. Robinson , 622 S.W.2d 62, 73 (Tenn. Crim. App. 1980).
The defendant argues that the trial court was require d to instruct the jury on duress. Agai n, he claims that his motiv ation to rob the store was solely to obtain money to alleviat e a threat of death to his grandc hildren. The defendant insists that this threat was continu ous and harm to the children imm inent. Although he knew it was wrong to rob a store, the defendant believed obtaining money to pay off the dealers and alleviate the threat to his grandchil dren outweighed the harmfulness the robbery statut e was designed to protec t.
We disagree. By the uncontested proof, ther e were other alternativ

es available to the defendant other than commission of this offense. No one threatened the defendant or a third per son with harm if he did not c ommit the robbery. Thus, duress is not fairly raised by the proof and the trial court did not err in refusing to give the special instruction.

Accordingly, the j udgment of the trial court is affirmed.

__________________________________ Gary R. Wad e, Judge CONCUR:

_______________________________ Thomas T. W oodall, Judge

_______________________________ Curwood Wi tt, Judge